Political Science 345: The Legislative Process Class 19: Congress and the Courts

1. Political Science 345:The Legislative ProcessClass 19: Congress and the Courts Professor Jon Rogowski

2. An expanded view of interbranch conflict • In the last class we talked about the factors that shape interbranch bargaining between legislatures and executives • The possibility of court intervention can shape both what Congress does, but can also shape the strategic calculations of legislatures and executives • This results in a more elaborate explanation of policy outcomes

3. Unilateral Action • Emancipation proclamation • Withdrawal of public lands for national parks system • Internment of the Japanese in WWII • Creation of major agencies: EPA, FDA, Peace Corps • Creation of international organizations: IMF • Imposition of regulatory review • Military tribunals for “enemy combatants” • Domestic Spying/Terrorist Surveillance

4. The President’s Arsenal • Executive orders • Directives issued to officers of the executive branch requiring them to take an action, stop an activity, alter policy, change management practices, etc. • Proclamations • Target individuals and groups outside governments, usually ceremonial • But Nixon used for price controls, Ford to pardon draft evaders, Carter to tax oil • National security directives • Unlike executive orders and proclamations, classified • Usually dealing with security or foreign policy, but sometimes domestic matters • Examples: aid to Contras, invasion of Grenada • Executive agreements • An alternative to treaties • Make international commitments on trade, immigration, environment

5. Patterns of EOs Source: Krause and Cohen 1997

6. Limits to Unilateral Power • “Congressional policy announced in a statute necessarily prevails over inconsistent presidential orders.” • Justice Marshall in Little • Things quickly get murky. • Assessing “consistency” more art than science. • Ambiguity works to the president’s advantage. • Limits to unilateral action are as wide or as narrow as Congress and the courts permit • But limits are not self-enforcing • What one president does, the next may undo

7. p v f m f v p m Equilibrium Policies Outcomes I II III IV V Gridlock Status quo

8. The Nature of Discretion • d reflects judicial reversals of the president’s actions • Based on constitutional and statutory interpretation • Judicial policy preferences can be incorporated into the model (wait for next class) • d may be directional, allowing only presidential actions that move policy toward the congressional median • The relevant median may be that of the enacting, not the current, Congress • Vague laws enhance d

9. EOs and the Courts Source: Howell and Ahmed 2013

10. v p f m f v p m Limits to Unilateral Power: d Outcomes I II III IV V Gridlock d Status quo q

11. Types of law • Criminal Law • Civil Law: contracts and torts • Public Law: someone seeks to show that their case involves powers of government/rights of citizens as defined by Constitution (Constitutional law) • Trial Courts • Appellate Courts Types of courts

12. Federal Court System Supreme Court Requests For Reviews State Supreme Court U.S. Court of Appeals State Appellate Court U.S. District Courts State Trial Courts

13. Overview of Court System • Except for Supreme Court cases, decisions made by appeals courts are final • Normally 3 judges hear appealed cases • 10% lower cases accepted by federal appellate courts and Supreme Court in its appellate capacity • 12 Judicial circuits, each with a U.S. Court of Appeals (each state assigned to closest) • Federal courts: treaties, federal laws, Constitution, hear appeals from state-level courts

14. Appellate Courts • Hears the appeals of trial court decisions • Rulings considered law, but only governs behavior of the judiciary • Decisions affect citizens by giving them a cause of action, or by taking it away; they open or close access to the courts • Judicial nominations highly politicized at appellate (or circuit) level

15. Why have judicial nominations become so contentious? • Supreme Court only decides about 80 cases a year; circuit courts more important in setting law • Circuit courts often recruiting grounds for Supreme Court • Contests seen as a warm-up for impending battles over Supreme Court vacancies • Simple clash over ideological balance of power on the courts (if no dissent, Democrats wouldn’t be doing their job)

16. Legislative checks on the judiciary • Nomination process • Constitutional amendments • Withdrawal of jurisdiction: Congress can threaten to withdraw S.C.’s authority to review certain categories of cases • Impeachment of judges • Size, Procedure, and Pay: Congress can change the size of the S.C., set salary and voting procedure

17. Constitutional Amendments 4 amendments overturned SC decisions • States granted immunity from suits by citizens outside their borders (11th,1795) • Dred Scott nullified by abolishing slavery (13th, 1865) and granting blacks citizenship (14th, 1868) • Federal income tax (16th,1913) • Lowered voting age to 18 (26th, 1971)

18. Judicial Nominations (formally) • Federal judges are appointed by the president • Once the president has nominated an individual, the nominee is considered by the Senate judiciary committee • Must be confirmed by a majority vote in the full Senate

19. Informal nominating practices • Senatorial Courtesy: Senators from the candidate’s own state must indicate that they support the nominee • Blue-Slip policy: (of the Judiciary Committee) applies only to district and circuit court nominees • Blue approval papers senators must submit on behalf of nominees for federal judgeships in their states • Both state senators must submit slips for nominee to be considered by Judiciary Committee

20. Judicial-Congressional interactions • In reaching decisions, Supreme Court justices must anticipate the actions of Congress • Voting their preferences may provoke Congress into enacting legislation that the justices don’t like • “The switch in time that saved nine” • Several justices voted in favor of (possibly unconstitutional) New Deal legislation to diminish Congressional support for Roosevelt’s plan to pack the court

21. The Power of the Judiciary • Interpretative decisions can uphold or broaden the powers of Congress • Can check overreaching by the Congress through judicial review • Policymaking catalyst when Congress is deadlocked, or doesn’t want to act

22. Marbury v. Madison • Provided basis for Supreme Court’s power of judicial review, the power to declare actions of the legislative and executive branches unconstitutional • Led to Supreme Court becoming an important branch of the federal government

23. The case • In 1800 presidential election, Jefferson defeated Adams (a Federalist) • Federalists also lost Congress, and between November and March, Adams nominated more than 200 men to new offices, 42 were justices of the peace for new capital; Marbury was a justice • Senate confirmed Adams’s nominees; all left was for president to sign commissions and Secretary of State to supervise their delivery • Marbury commission, though signed and sealed, was “lost”

24. When Jefferson took office Marbury asked for his commission and Madison refused • Marbury appealed to Supreme Court, Jefferson and Madison ignored legal proceedings thinking Court could not give orders to other branches of government • Supreme court ruled Marbury deserved his commission, and a writ of mandamus(the proper legal procedure) to ensure it • But could the Court issue such a writ? • Marshall ruled no, because Court could not exercise original jurisdiction over such a case • Is an appellate court, not a trial court • Ambassadors, states as parties, etc.

25. Supreme Court as policy maker • Voting rights and malapportionment cases • “One Man, One Vote” principle created a large metropolitan majority in the House • Reallocated benefits from rural to urban interests • Baker v Carr: Court could rule on apportionments • Westberryv Sanders: one man, one vote • In 1962, only 9 districts were within 1% of the average size of districts in their states • By 1972, 385 deviated by less that 1% the average

26. Why did the courts intervene? • House members were never going to do it • MCs from rural districts would have opposed it, as would have anyone in a safe district • How does this relate to the debate over the electoral college? • States get # electors = # congressional seats= # House seats + 2 Senate seats

27. How Does the Court Decide when to intervene? 1. Justiciability: “cases and controversies" 2. No advisory opinions (1793) 3. Collusion 4. Mootness 5. Ripeness 6. Political Questions

28. Stepping into Political Questions • Redistricting • 1. Baker v. Carr (1962) (Districting is justiciable) • 2. Reynolds v. Sims (1964) (State Districts) • 3. Westberryv. Sanders (1964) (Federal Districts) • Deference to the Bureaucracy/Delegated Powers • Chevron v. NRDC (1984): deference to “reasonable interpretations” • Separation of Powers • INS v. Chadha (1982): Legislative veto • Even with popular laws: • Buckley v. Valeo (1976): Campaign Finance • Bowsher v. Synar (1986): Gramm-Rudman-Hollings I • Clinton v. City of New York (1998): Line-Item Veto

29. Courts or Administrators? • Courts are not experts • Courts view themselves as less “representative” than Congress and Executive Branch • Accordingly, most difficult decisions related to policy have been left to administrators (Chevron) • Courts do intervene, of course • but usually to say something can’t be done, rather than what should be done.